[Air-l] Trolls

[Julie Cohen]

(warning: this is longish - blame the 119 bluebooks...)

I'm interested in this discussion for three reasons:  I'm a list member;
I'm a list member with some outider-ish attributes; and I've just
finished grading a long seminar paper on patent trolls and how to define
them.  I'll take these in reverse order:

On definitions:  Among folks who care about such things, how to define a
patent troll is hotly disputed.  Some say trolls are unproductive
rent-seekers who exploit the US patent system's lax standards of
obviousness to hold up legitimate market participants.  Others say that
by identifying and resuscitating poorly-performing assets, parties
labeled trolls perform a valuable market-clearing function analogous to
that performed by, say, ASCAP or the Copyright Clearance Center.  The
right answer seems to be a little bit of both:  some "true trolls" are
mere exploiters, while other "market-clearers" are moving the market for
intellectual property licensing in a direction that, 10 or so years from
now, will seem wholly unremarkable.

It seems to me that the same might be said of trolls on lists:  some are
"true trolls" while others are trying to move the discussion in a
legitimate direction, albeit one that many list members find a tiresome
hobbyhorse or otherwise want to avoid.  [This should be obvious but in
case it isn't, I intend no comment on which characterization fits the
present controversy.]  

Some potted etymology:  My dictionary lists roughly three definitions
for "troll":  to sing over and over again, as a round; to fish with a
long line; a creature that lives in a cave.  Patent trolls and list
trolls present an oddly apt merger of the three definitions, which can
be framed in a relatively neutral fashion:  they fish with the same bait
over and over again for a particular "catch" of interest to them, and
many find them unsightly.  (yup, way too many bluebooks!)

On list outsiders:  How do we decide what counts as trolling for AOIR
purposes?  Discussion of this question has mixed two distinct
subquestions.  

The first subquestion relates to what counts as "internet research."
This list's membership is diverse, and that's a good thing.  I joined it
because I had had my fill of "law and economics"; I figured a group of
humanities and social science scholars would be more eclectic and
openminded.  That's true -- oy, except when it isn't.  I've met a number
of you and thought you were all very nice people, but you do tend to
close ranks in a hurry when there is a whiff of crass commerce in the
air.  Whatever our faults, lawyers tend to be made of sterner stuff, and
fwiw I think that behavior is worth reconsidering.  These days, the
age-old wall between "pure" academia and crass commerce is anything but.
Foundations with agendas, partisan think tanks, corporate research
centers, and even - gasp - for-profit educational centers are
everywhere.  The way most of us were educated, the old world made more
sense, but the new one is rife with the sorts of hybridity and slippage
that excite intense interest to list members when they crop up in other
contexts.  It would make more sense to consider the interesting
questions before rushing to condemn whatever it is.

The second subquestion relates to what counts as appropriate behavior on
this list.  I agree that bad behavior can poison even what ought to be a
good topic.  But it seems to me that blame is more equally distributed
here than many acknowledge.  I'm with whoever (Suzana?) suggested  a
fundamental distinction between calling someone a troll, forever and for
always, and accusing someone of trolling.  As I'm lawyering today, let's
take the facts in the light most favorable to the "accused": someone who
believes that he is an internet researcher and that list membership will
assist him in pursuing his professional interests, and who wants to stop
trolling and conform more closely to the etiquette of the list, might
feel that he had done himself such irreparable harm the first time
around that pseudonymity is the way to go.  Unless you are someone who
believes that trolls are trolls, forever and for always, that ought to
be defensible.  That doesn't make it the smartest choice; for myself, I
would have preferred an apology to the list and a statement of intent to
try harder not to insult people and waste their time.  Two caveats,
though:  It's amazing how often otherwise-fully-functioning adults have
difficulty doing this.  It's also amazing how unforgiving other adults
can be.  

Which brings me, in a roundabout way, to my last point:  One fairly
reliable way of distinguishing between "true trolls" and (trollish)
market clearers seems to be that true trolls thrive on attention for its
own sake.  Whether they receive it, however, is one thing that is not
within their control.  So enough already about WRC.  Please.

Julie


Julie E. Cohen
Professor of Law
Georgetown University Law Center
jec at law.georgetown.edu
http://www.law.georgetown.edu/faculty/jec/